H-1B Visa: de Geus’ tragedy looms large

The White House this week issued an Executive Order launching a complete review of the H-1B visa program as it pertains to high-tech workers. Is this a relief for those involved in using these devices to bring in tech talent from overseas and want to get it right? Or does it harbor a deepening of what Synopsys Aart de Geus terms “a tragedy” – the ongoing difficulty of getting easy access to the global talent pool that Silicon Valley professes to need?

More fundamentally, why are there H-1B visas in the first place? Are there indeed too few American nationals with the training needed to push Silicon Valley’s tech agenda forward? And if those numbers are insufficient, why can’t the talent pool be augmented with off-shore workers laboring away in distant climes?

After all, distributed teams and remote computing have been a way-of-life for several decades here in the Digital Age. Remember all of the crowing at the dawn of the Era of the Distributed Team: Development would go on non-stop, 24×7. Wherever the sun is shining, designers are designing, was the received wisdom when it comes to global teams – and it continues to be.

So, why is it so important to bring people into the U.S. when they can work elsewhere, in their own locale – their efforts melded into the corporate whole via VPNs and/or crafty IT interventions that knit the project together seamlessly. All of that enhanced even further with the advent of The Cloud that Computes.

Of course, all glibness aside, this is not what the newly issued H-1B Executive Order is about. Looking beyond the political histrionics of the issue, the evidence clearly indicates there have been abuses in the system.

Stated in its simplest form: American workers working in high-tech in America are expected to deliver a good day’s work for a good day’s pay; abused H-1B foreign nationals working in high-tech in America are also expected to deliver a good day’s work, but ofttimes for far-less-than-a-good-day’s pay.

And since their permission to work here in the U.S. is granted through a visa linked to a particular employer, those foreign nationals do not have the freedom to bargain between employers for better pay or perks, or even conditions.

If they quit in protest of low pay or indentured-servant-like working conditions, they have to leave the country because the H-1B visa that allowed them to work for the one employer does not allow them to jump ship and work for another.

The Executive Order launching the review will surely trigger investigations of such abuse, although a lot of investigation has already taken place. [See below]

But, we’ve still not answered the fundamental question: Why H-1B visas at all? Are there too few American nationals with the training needed to push Silicon Valley’s tech agenda forward?

According to a study conducted by John Miano and the Center for Immigration Studies, there is no empirical data to support a claim of employee worker shortage.

Citing studies from Duke, Alfred P. Sloan Foundation, Georgetown University and others, critics have also argued that in some years, the number of foreign programmers and engineers imported outnumbered the number of jobs created by the industry.

Studies carried out from the 1990s through 2011 by researchers from Columbia, Computing Research Association (CRA), Duke, Georgetown, Harvard, National Research Council of the NAS, RAND Corporation, Rochester Institute of Technology, Rutgers, Alfred P. Sloan Foundation, Stanford, SUNY Buffalo, UC Davis, UPenn Wharton School, Urban Institute, and U.S. Dept. of Education Office of Education Research & Improvement have reported that the U.S. has been producing sufficient numbers of able and willing STEM (Science, Technology, Engineering and Mathematics) workers, while several studies from Hal Salzman, B. Lindsay Lowell, Daniel Kuehn, Michael Teitelbaum and others have concluded that the U.S. has been employing only 30% to 50% of its newly degree’d, able-and-willing STEM workers to work in STEM fields.

A 2012 IEEE announcement of a conference on STEM education funding and job markets stated “only about half of those with under-graduate STEM degrees actually work in the STEM-related fields after college, and after 10 years, only some 8% still do”.

Ron Hira, a professor of public policy at Howard University and a longtime critic of the H-1B visa program, recently called the IT talent shortage “imaginary,” a front for companies that want to hire relatively inexpensive foreign guest workers.

Perhaps it’s an examination of this more fundamental question that this week’s Executive Order will trigger.

It’s not the abused H-1B worker that’s the concern, it’s the need for H-1B workers in the first place. It’s the abused American worker that’s the concern.

Is Aart de Geus’ “tragedy” about a shortage of skilled workers should the H-1B program be curtailed?

Or is it about the impact on the bottom line for any high-tech organization that must hire appropriately skilled American nationals who arrive each day with the annoyingly legal wherewithal to exchange a good day’s work for a good day’s pay – and are willing and able to jump ship if they don’t get it.

Leaving the door open just enough for an H-1B employee to get the job.

*****************Editor’s Note …

This whole conversation takes on a special flavor in light of the specific skill-set needed to develop EDA tools. It would be a great to see the ESD Alliance host an evening panel addressing this issue:

What are the specific skills needed for EDA tools developers and are universities in the U.S. turning out the type of graduate that can offer those skills to a potential EDA employer?

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the U.S. Department of Labor’s PERM system for labor certification erased most of the earlier claimed arguments for H-1Bs as indentured servants during the green card process. With PERM, labor certification processing time is now approximately 9 months (as of Mar 2010).

Because of AC21, the H-1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, and if the position they move to is substantially comparable to their current position. In some cases, if those labor certifications are withdrawn and replaced with PERM applications, processing times improve, but the person also loses their favorable priority date.

In those cases, employers’ incentive to attempt to lock in H-1B employees to a job by offering a green card is reduced, because the employer bears the high legal costs and fees associated with labor certification and I-140 processing, but the H-1B employee is still free to change jobs.

However, many people are ineligible to file I-485 at the current time due to the widespread retrogression in priority dates. Thus, they may well still be stuck with their sponsoring employer for many years. There are also many old labor certification cases pending under pre-PERM rules.